By Josh Gerstein, Politico, April 10, 2017
A new lawsuit is demanding that a log of visitors to the White House and to President Donald Trump’s homes in New York and Florida be released to the public.
The suit, set to be filed Monday in federal court in New York, contends that the Secret Service is in violation of the law by failing to respond to Freedom of Information Act requests for details on visitors to the White House and other locations where Trump has spent time since taking office.
In 2009, President Barack Obama’s administration became the first to routinely release logs of White House visits, eventually disclosing nearly 6 million visits or appointments at the White House complex. The Obama White House billed the disclosures as voluntary, but they were established in an effort to settle a lawsuit Citizens for Responsibility and Ethics in Washington brought seeking visitor logs from President George W. Bush’s administration.
The Trump White House has not said whether it will maintain the practice of disclosing visitor logs, although officials have maintained a page for such releases on the White House website.
Under Obama’s policy, visitor records were released a month at a time, three months after the visitors were scheduled to visit the White House complex. If Trump maintained that policy, the first disclosures would not occur until the end of this month.
The new court complaint was brought by the National Security Archive, archive researcher Kate Doyle, the Knight First Amendment Institute at Columbia University and CREW, the same group involved in the suit over the Bush-era records.
By filing in New York rather than in Washington, where most FOIA suits are filed, the plaintiffs may be trying to avoid having the case scuttled by a key legal precedent already on the books that sharply limits the public’s right to see logs of visitors to the White House complex.
Despite the Obama administration’s disclosure policy, which contained a series of exceptions allowing the withholding of the names of visitors in sensitive circumstances or those deemed to be personal visitors to the first family, the conservative transparency-focused group Judicial Watch pressed on with a lawsuit seeking records for up to nine months before Obama adopted the disclosure policy in September 2009.
That suit met its demise in 2013, when the D.C. Circuit Court of Appeals ruled that records of most White House visitors were not accessible under the Freedom of Information Act. Chief Judge Merrick Garland — who would go on to be an unsuccessful Obama nominee for the Supreme Court — concluded that requesting the records from the Secret Service amounted to an end run around the structure of the access law, which covers federal government agencies but not the White House itself.
“At bottom, we do not believe Congress intended that FOIA requesters be able to obtain from the gatekeepers of the White House what they are unable to obtain from its occupants,” Garland wrote.
The ruling did allow the public to obtain information on a less-newsworthy set of visitors to the White House complex: those visiting agencies covered by FOIA but located on those grounds, such as the Office of Management and Budget.
Since the new suit is to be filed in U.S. District Court in Manhattan, it will be governed by the law of the New York-based 2nd Circuit. Judges in that circuit are not bound to follow the D.C. Circuit ruling, although they would typically address it in any ruling on the subject.
Plans for the new suit were first reported late Sunday by The Washington Post.